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Internet surveillance and free speech: the UN makes the connection

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REUTERS/Kacper Pempel/Files

Frank La Rue, the United Nations Special Rapporteur on Freedom of Expression and Opinion delivered this week a landmark report on state surveillance and freedom of expression. In preparation, the Special Rapporteur reviewed relevant studies, consulted with experts including EFF, and participated in the state surveillance and human rights workshop we organized in 2012. On 4 June 2013, EFF's Katitza Rodriguez took part in the first detailed conversation about State Surveillance and Human Rights at the U.N., held by the 47 member states of the Human Rights Council during the U.N.'s 23th session in Geneva.

At a time when efforts by states to conduct communications surveillance are rapidly proliferating across the globe, La Rue makes the case for a direct relationship between state surveillance, privacy and freedom of expression:

"The right to privacy is often understood as an essential requirement for the realization of the right to freedom of expression. Undue interference with individuals' privacy can both directly and indirectly limit the free development and exchange of ideas . . . An infringement upon one right can be both the cause and consequence of an infringement upon the other."

La Rue's landmark report could not come at a better time. The explosion of online expression we've seen in the past decade is now being followed by an explosion of communications surveillance. For many, the Internet and mobile telephony are no longer platforms where private communication is shielded from governments knowing when, where, and with whom a communication has occurred.

The report acknowledges the benefits of technological innovations that have enabled rapid, anonymous, cross-cultural dialogues around the world. Nevertheless, the report warns that these same technologies can open a Pandora's box of previously unimaginable state surveillance intrusions.

"The Internet has facilitated the development of large amounts of transactional data by and about individuals. This information, known as communications data or metadata, includes personal information on individuals, their location and online activities, and logs and related information about the e-mails and messages they send or receive."

The report explains how metadata can reveal sensitive information that can be easily accessed, stored, mined and exploited.

"Communications data are storable, accessible and searchable, and their disclosure to and use by State authorities are largely unregulated. Analysis of this data can be both highly revelatory and invasive, particularly when data is combined and aggregated. As such, States are increasingly drawing on communications data to support law enforcement or national security investigations. States are also compelling the preservation and retention of communication data to enable them to conduct historical surveillance."

As La Rue indicates, it is the capacity of new technologies to instantly aggregate and analyze data makes it a beacon of one's online presence. EFF believes that "metadata" - information logging individuals' communication activities - is as sensitive as the content of communication and therefore deserves strong human rights protections.

For example, with all the amount of information and evolving surveillance technologies, law enforcement agencies now can:

• Directly observe people's relationships and interactions and make inferences about their intimate and protected relationships.

• Examine millions of people's communications and rapidly identify precise communications interactions on any given topic.

• Track any person's physical movements almost all of the time and draw conclusions about one's professional, sexual, political, and religious activities, and attitudes from individuals' associations and Internet traffic.

• Routinely retain data for decades, so that statements and interactions can be searched, analyzed, and recalled long after they have been made.

• Do all of the above simultaneously.

La Rue reminds States that in order to meet their human rights obligations, they must ensure that the rights to free expression and privacy - and metadata protection in particular - are at the heart of their communications surveillance frameworks. To this end, the Special Rapporteur urges states to review national laws regulating surveillance and update and strengthen laws and legal standards:

Communications surveillance should be regarded as a highly intrusive act that potentially interferes with the rights to freedom of expression and privacy and threatens the foundations of a democratic society.

Legislation must stipulate that State surveillance of communications must only occur under the most exceptional circumstances and exclusively under the supervision of an independent judicial authority.

At present, access to communications data has been conducted by a variety of public bodies for a broad range of purposes, often without judicial authorization and independent oversight. Such overbroad access threatens basic democratic values.

Are prescribed by law, meeting a standard of clarity and precision that is sufficient to ensure that individuals have advance notice of and can foresee their application,
Are strictly and demonstrably necessary to achieve a legitimate aim,
Adhere to the principle of proportionality, and are not employed when less invasive techniques are available which have not yet been exhausted.

EFF could not agree more that individuals have a legal right to be notified when they have been subjected to communications surveillance and have had their communications data accessed by the state. We celebrate La Rue's invaluable recommendations and will begin immediately using his report in our own advocacy work throughout the world. EFF will continue to blog about additional findings in the La Rue's report in the following days.

NOTE: "Metadata" is defined as Information about an individual's communications: mail, phone calls and text messages sent and received, social networking messages and posts, identity, network accounts, addresses, websites visited, books and other materials read, watched or listened to, searches conducted, resources used, interactions (origins and destinations of communications, people interacted with, friends, family, acquaintances), and times and locations of an individual, including proximity to others.

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